“There is separation of church and state, and which church someone belongs to or whether or not they attend a church should not affect their ability to serve,” she said.

While it appears that Texas candidates have never been challenged based on the clause, a similar law in North Carolina is causing controversy regarding one Asheville city councilman.

Cecil Bothwell assumed office on Dec. 14, only to hear an outcry from a group of conservative activists. Those activists are requesting Bothwell, an atheist and member of the Unitarian Universalist Church, be removed from office based on a clause in North Carolina's Constitution that disqualifies officeholders “who shall deny the being of Almighty God.”

The controversy went viral, attracting the attention of national newspapers, Web sites and TV programs, when one foe, H.K. Edgerton, threatened to take the city of Asheville to court in a lawsuit, the Associated Press reported. Legal experts predict the case wouldn't advance very far because the state law is trumped by the U.S. Constitution.

“Frankly, this is one of the easiest cases I've ever seen,” said Arnold Loewy, George R. Killam Jr. Chair of Criminal Law at Texas Tech, who teaches a course of the First Amendment. “It's crystal clear that the North Carolina and Texas law is unconstitutional.”

The law is found in Section 4 of the Texas Constitution Article I, the Bill of Rights. It reads, “No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.”

In 1961 Torcaso v. Watkins, a case similar to the current events in Asheville, went to the U.S. Supreme Court. The court exercised separation of church and state by ruling in favor of a Maryland atheist seeking public appointment.

The fact the U.S. Constitution overwrites the state law may be what's prevented the Legislature from changing the law.

Loewy said rewriting the state Constitution is unnecessary and typically not done by legislators.

Rewriting the law would take time away from lawmakers who would rather deal with current issues, said Dan Rodriguez, a University of Texas professor of law who specializes in state law.

“Often it's just not worth the effort or the energy,” Rodriguez said. He said with laws like this, state leaders “just have to hold their breath and hope no one notices.”

“But you always have to be wary,” he added.

Loewy said the issue may not have been raised before because it's not common for candidates to mention their religious beliefs, particularly if an atheist were running in a place like Lubbock with more than 400 churches.

Bothwell's views caught the public's attention when he took an alternative oath that did not mention God or require him to place his hand on the Bible.

Rodriguez said such laws were written as a result of the ideas that dominated the South during the American Reconstruction, when many of those states' constitutions were rewritten. Texas' Constitution was completed in 1876, while North Carolina's Constitution was adopted in 1868. Constitution authors incorporated the religious language to speak out against the radical Republican rule that dominated the time.

John Watts, Texas Tech associate professor of law, said other antiquated laws in many state Constitutions go unnoticed. Decades ago atheists were not allowed to testify in court on grounds that they could not be trusted to tell the truth if they didn't believe in God, he said. Watts agreed that it would be unlikely for the state constitution to be re-written.

“It's unnecessary,” he said. “And from what I've seen of Texans, they don't like to be told what to do.”

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Distributed by McClatchy-Tribune Information Services.

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